09-2245-ag

Lin v. BCIS

BIA

Gordon-Uruakpa, IJ

A070 163 444

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 26 day of July, two thousand ten. th

PRESENT:

RALPH K. WINTER,

JOSÉ A. CABRANES,

REENA RAGGI,

 Circuit Judges.

_________________________________________

PENGFEI LIN,

Petitioner, 

 v. 09-2245-ag

NAC

BUREAU OF CITIZENSHIP AND 

IMMIGRATION SERVICES,

Respondent.

_________________________________________

 

FOR PETITIONER: John Chang, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Ernesto H. Molina, Jr.,

Assistant Director; D. Nicholas

Harling, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED. 

Pengfei Lin, a native and citizen of the People’s

Republic of China, seeks review of a May 21, 2009, order of

the BIA, reversing the October 9, 2007, decision of

Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, granting

his application for asylum and withholding of removal. In

re Pengfei Lin, No. A070 163 444 (B.I.A. May 21, 2009),

rev’g No. A070 163 444 (Immig. Ct. N.Y. City Oct. 9, 2007). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we review the

BIA’s decision alone. See Yan Chen v. Gonzales, 417 F.3d

268, 271 (2d Cir. 2005).

Preliminarily, we reject Lin’s challenge to the BIA’s

conclusion that his case was governed by the REAL ID Act of

2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231 (2005),

which governs applications for asylum and withholding of

removal filed after May 11, 2005, see Matter of S-B-, 24 I.

& N. Dec. 42, 45 (BIA 2006). Although Lin sent an asylum

application to the former INS in 1993, after he was ordered

deported, that application was rejected as improperly filed. 
3

In August 2005, Lin filed a motion to reopen with a new

asylum application, making an entirely different claim. 

Reviewing the BIA’s interpretation of the statute for

reasonableness, see Maghradze v. Gonzales, 462 F.3d 150, 152

(2d Cir. 2006); Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.

2001), we affirm the agency’s conclusion that because Lin’s

1993 application was never properly filed, August 2005 is

the relevant filing date, and the REAL ID Act applies.

We further conclude that substantial evidence supports

the BIA’s determination that Lin failed to demonstrate a

well-founded fear of persecution, i.e., “a subjective fear

that is objectively reasonable,” Shi Jie Ge v. Holder, 588

F.3d 90, 94 (2d Cir. 2009) (internal quotation marks

omitted), on account of his having fathered two children,

see Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

(holding that an applicant’s well-founded fear claim was

“speculative at best” when he failed to present “solid

support” that he would be persecuted for violating family

planning policy upon his return to China); see also Jian Hui

Shao v. Mukasey, 546 F.3d 138, 161-62 (2d Cir. 2008)

(finding that substantial evidence supported the BIA’s

determination that petitioner failed to demonstrate a

reasonable possibility that he would face forced
4

sterilization in China based on fathering two children). 

In support of his application, Lin submitted voluminous

background material, including the 2007 Department of State

Country Report and the Aird affidavit. The BIA did not err

by summarily considering this evidence. See Jian Hui Shao,

546 F.3d at 169; see also Wei Guang Wang v. Mukasey, 437

F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA must

consider evidence such as “the oft-cited Aird affidavit,

which [it] is asked to consider time and again[,] . . . it

may do so in summary fashion without a reviewing court

presuming that it has abused its discretion”).

Although Lin also submitted an unauthenticated

photocopy of a certificate purportedly issued by his local

village committee, the BIA did not err in finding that this

document did not permit Lin to carry his burden of proof

because, while the certificate referenced a mandatory

sterilization requirement, it did not “detail what would

occur if [Lin] refused” to comply or state that “other

persecutory measures would be inflicted upon him.” See Jian

Hui Shao, 546 F.3d at 172. We reach the same conclusion

regarding a letter from Lin’s sister alleging that she was

forcibly sterilized, because Lin’s sister’s children were
5

“born in China and the letter fail[ed] to explain the

factual circumstances of her sterilization such as the

gender of her children, whether either birth was permitted,

and if the children were registered.” See id. at 160-61.

Therefore, the agency properly denied Lin’s application

for asylum. See 8 U.S.C. § 1101(a)(42). Because Lin was

unable to show the objective likelihood of persecution

needed to make out an asylum claim, he was necessarily

unable to meet the higher standard required to succeed on a

claim for withholding of removal where the claim rested on

the same factual predicate. See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk